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NEW PHONE & FAX: Phone: 512 221 0121 Fax: 512 233 2559

 

 

 

 

BUYERS’ AGENT AND THE SELLERS DISCLOSURE OF PROPERTY CONDITION

The Buyer’s Agent obviously will have nothing to do with the preparation of the SELLER'S DISCLOSURE of PROPERTY CONDITION. But remember what their duty to the transaction and the Buyer is:

A buyer’s agent must place the interests of the buyer first.

So when dealing with a Sellers’ Disclosure Notice, the Buyer’s Agent has no secret powers enabling him or her to decipher false and fraudulent information. They should, however, have familiarity with the requirements of preparing the SELLER'S DISCLOSURE of PROPERTY CONDITION and they should then alert the Buyers that there is or may be a problem when there are no “YES” or “NO” checks in Section 3 or when there is no explanation of any “YES” answers in Section 3.

For example, it is difficult to accept that a licensed real estate agent can allow a SELLER'S DISCLOSURE of PROPERTY CONDITION to be given to the buyer that is incomplete. Consider the blank, unanswered conditions in Sections 2 or 3. The Buyer’s Agent should demand that the form be completed and might actually want to suggest moving on to the next house because it is incomplete. Yet, it too frequently, the transaction closes without any discussion, follow up or questions about the missing information.

An even more frequent occurrence than the blank answer in Sections 2 or 3 is the incomplete or insufficient explanation that is required after a YES answer in Sections 2 and 3. The following is an explanation from an actual SELLER'S DISCLOSURE of PROPERTY CONDITION that had a YES for Previous Flood into the Improvements and Previous Flood onto the Property (The form has been changed since then).

After four (4) days of rain-38 inches- of rain came from north from the front overflow from Spring Creek in San Jacinto Water Authority.

This case was in Houston well before Tropical Storm Allison and the buyers were from Iowa and unfamiliar with Houston’s flooding propensities. They asked their realtor (because they had no direct contact with the sellers) what the above explanation meant. The agent, a Buyers’ Agent, then asked the Listing Agent what that explanation meant. The listing agent did not indicate she would call back after conferring with the Sellers, she answered immediately that there had been 1 foot of water in the garage. Since the garage was a couple of feet below the house, this did not concern the couple from Iowa. They bought the house and one day, one of the neighbors asked one of them if they knew how high the water had been in their house during the flood that the Sellers had in fact disclosed. The Buyers said no and promptly went over to the neighbors where they plugged in a Video of the flood that showed their house in the middle of a river. There was at least five feet of water in the video and there were rescue boats in what should have been the front yard. Later a rescue helicopter began lifting residents to safety and at the end of the video, the Sellers, the same people who had filled out the SELLER'S DISCLOSURE of PROPERTY CONDITION with the above explanation, were walking through waist deep water down the street from their house with life jackets on. Needless to say, the aforementioned “Explanation” did not comport with the reality of what had happened.

The Buyer’s Agent had done what he was supposed to and that was to ask the question. The explanation in the form really said nothing about the flooding. The Listing Agent had grossly misrepresented the real facts and in the end, a Harris County Jury awarded exemplary damages for Fraud in a Real Estate Transaction because of the “Explanation”.

 

NEW PHONE & FAX: Phone: 512 221 0121 Fax: 512 233 2559

Evin G. Dugas - Attorney at Law 512.261.0044 Evin@housedefects.com
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